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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RONALD WILSON, 

Plaintiff,

v.

NORBRECK, LLC dba JOHNNY

CARINO’S; FAIRBRECK, LLC; AH

FOODS CORPORATION, and DOES 1-

10

Defendants.

CIV-S-04-0690 DFL JFM 

MEMORANDUM OF OPINION

AND ORDER

Plaintiff Ronald Wilson sued defendants Norbreck, LLC and

Fairbreck, LLC (collectively “Norbreck”) for violations of the

Americans with Disabilities Act (“ADA”) and related California

statutes. Norbreck moves for partial summary judgment and for an

order specifying material facts as without substantial

controversy. Wilson cross moves for summary judgment. For the

reasons stated below, both motions are GRANTED in part and DENIED

in part.

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I.

Wilson uses a cane or wheelchair “when traveling in public”

and qualifies as “physically disabled” under all applicable state

and federal laws. (Wilson Decl. ¶ 4.) Wilson has visited the

Johnny Carino’s restaurant owned by defendants (“the restaurant”)

five times. (Id. ¶ 7.) He alleges that during each visit he

encountered architectural barriers which: (1) denied him full and

equal access to the restaurant; and (2) caused him to suffer

emotional and physical harm. (Id. ¶ 8.) He also claims that he

has forgone dining at the restaurant on five other occasions

because of these barriers. (Wilson Decl. ¶ 10.) As a result,

Wilson is seeking compensatory and punitive damages, injunctive

and declaratory relief, attorneys’ fees, and costs from Norbreck

under: (1) The ADA (42 U.S.C. §§ 12101 et seq.); (2) Cal. Health

& Safety Code §§ 19955 et seq.; (3) The Unruh Civil Rights Act

(“Unruh Act”) (Cal. Civ. Code §§ 51 et seq.); (4) The Disabled

Persons Act (Cal. Civ. Code §§ 54 et seq.); (5) The Unfair

Business Practices Act (Cal. Bus. & Prof. Code §§ 17200 et seq.);

and (6) Cal. Civ. Code § 1714. (Id. ¶ 2.) 

II.

In the course of this litigation, Wilson has alleged more

than sixty different ADA violations at the restaurant. However,

he only listed about half of these violations in the complaint. 

The others are found in a letter addressed to the restaurant and

in the expert’s report. To make matters more confusing, Wilson

lists some of the alleged violations in all three documents,

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others in two of the three documents, and still others in only

one document. Wilson further complicates things by moving for

summary judgment on claims that he did not include in the

complaint. 

To clear up the confusion, the court instructed the parties

to jointly compile a final list of the alleged violations on

which Wilson is moving for summary judgment. The parties

complied. The court will evaluate Wilson’s motion for summary

judgment based on this final list of twenty-four violations. 

This case vividly demonstrates that chaos will ensue unless the

court insists upon strict adherence to the pleading rules and the

scheduling order. Plaintiff may only go forward on alleged

violations that are fairly identified in the complaint and any

amendments to the complaint. Otherwise the complaint does not

give adequate notice to defendant under Rule 8 of these barriers

that he has encountered and for which he claims injury and seeks

redress.

A. Standing

Article III standing is limited to those plaintiffs who can

allege an injury in fact that is: (1) actual and imminent; and

(2) concrete and particularized. Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61, 112 S.Ct. 2130 (1992). As discussed in

Martinez v. Longs Drug Stores, Inc., CIV-S-03-1843 DFL CMK, slip

op. at 10-11 (E.D. Cal. Aug. 25, 2005), a plaintiff alleging

noncompliance with the ADA has standing to bring claims for

violations that he had personally encountered, or had knowledge

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 Although a plaintiff must have personal knowledge of a 1

barrier to have standing, that knowledge can be indirect. For

example, a plaintiff who is injured by an ADA violation at one

table in a restaurant can sue for the same violation at other

identical tables without actually encountering each violation at

each table. Instead he can infer knowledge of the other

violations based on his experience at the first table. However,

the situations where a plaintiff can infer knowledge of a

violation are limited. See Indep. Living Res. v. Or. Arena

Corp., 982 F.Supp. 698, 762 (D.Or. 1997) (allowing the plaintiff

to remedy barriers that he did not encounter because “it is

unlikely that any plaintiff will ever sit in each of the seats or

use each of the restrooms, or attempt to reach each of the

ketchup dispensers. . .”); Pickern v. Best Western Timber Cove

Lodge Marina Resort, 2002 WL 202442 at *4 (E.D. Cal. 2002)

(finding that a plaintiff who encountered barriers in one

accessible room can remedy the same violations in accessible

rooms that he did not visit). 

 They are: (1) the lack of signage directing disabled 2

patrons along the accessible route of travel to the restaurant

entrance; (2) the lack of an accessible route of travel between

buildings; (3) the lack of an International Symbol of

Accessibility at the restaurant entrance; (4) the lack of

detectable warnings at hazardous vehicular areas outside the

building; (5) the entrance door requires more than five pounds of

force to open and closes in less than three seconds; (6) the bar

area lacks accessible seating; (7) the path to and from the bar

is too narrow and filled with obstructions; (8) the raised booths

in the cocktail lounge and dining area are inaccessible; (9) the

restroom paper towel dispenser is mounted too high; (10) the

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of, at the time he filed the complaint (or any later

amendments). As a result, a plaintiff lacks standing to bring 1

claims on violations that he did not encounter or have actual

knowledge of before he filed the complaint. Martinez, slip op.

at 10; see also Access Now, Inc. v. S. Fla. Stadium Corp., 1616

F.Supp.2d 1357, 1365 (S.D. Fla. 2001) (barring the plaintiff from

bringing claims for ADA violations the he did not actually

encounter in a stadium). 

Wilson moves for summary judgment on twenty-four alleged ADA

violations. Of these twenty-four violations, both parties agree 2

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accessible stall toilet tissue dispenser is more than 36" from

the back wall; (11) the waste receptacle and P-trap are in the

the clear floor space in front of the sink; (12) the cross slopes

of accessible routes exceed 2%; (13) the landing at the

restaurant’s curb ramp exceeds 2%; (14) the slopes of the

restaurant’s curb ramps exceed 8.33%; (15) the curb ramps lack

detectable warnings; (16) the detectable warnings between the

accessible parking stall and the curbside entrance are

excessively worn and no longer perform their function

satisfactorily; (17) the access aisle “NO PARKING” lettering is

only 10" in height; (18) the restaurant floor mats are not

securely attached to the floor; (19) the aisle serving both sides

of the restaurant is not 44" wide; (20) the restaurant has fixed

tables that provide a depth with less than 19" of knee clearance;

(21) the dining booths do not provide 30" between booths. Booths

located in the bar area do not provide 30" between booths and are

located on a raised platform; (22) the lowered portion of the

restaurant’s bar counter is only 37.5" long and does not provide

the proper knee clearance; (23) the accessible stall in the men’s

restroom is not 60" wide; and (24) the hot water pipes under the

sink are not insulated. 

5

that Wilson listed six in the complaint. They are: (1) the lack

of signage directing disabled patrons along the accessible route

of travel to the restaurant entrance; (2) the lack of accessible

seating in the bar; (3) the accessible stall toilet tissue

dispenser is more than 36" from the back wall; (4) the waste

receptacle and P-trap are located in the clear floor space in

front of the sink; (5) the restaurant floor mats are not securely

attached to the floor; and (6) the hot water pipes under the sink

are not insulated. 

Wilson contends, and the court agrees, that in addition to

these six alleged violations, five other barriers are also

identified in the complaint. They are: (1) the entrance door

required more than five pounds of pressure to operate; (2) the

cocktail lounge has booths located on an inaccessible platform;

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(3) the restaurant has fixed tables with less than 19" of

clearance; (4) the dining booths do not provide 30" between

booths; and (5) the lowered portion of the bar does not provide

knee clearance. 

However, the remaining claims listed in the motion for

summary judgment were never included in the complaint or any

timely amendment to the complaint. Therefore, these claims are

not part of this lawsuit and will not be addressed further.

B. Norbreck’s Motion for Summary Judgment

Norbreck moves for summary judgment on: (1) the alleged

signage violation at the restaurant; (2) Wilson’s representative

claim under Cal. Bus. & Prof. Code § 17200; and (3) Wilson’s

request for punitive damages. (Defs.’ Mot. at 5-11.) 

1. Lack of Signage Directing Disabled Patrons Along the

Accessible Route to the Restaurant Entrance

Norbreck moves for summary judgment on Wilson’s claim that

the lack of signage directing disabled patrons along the

accessible route of travel to the restaurant entrance violates

ADA Accessibility Guidelines Standard (ADAAG) 4.1.2(7) and

California Building Code (CBC) § 1127.B.3. (Defs.’ Mot. at 6;

Pl.’s Mot. at 3.) ADAAG 4.1.2(7) requires restaurants to post a

sign at each inaccessible entrance indicating the route to an

accessible entrance. CBC § 1127.B.3 requires the posting of a

sign “at every major junction along or leading to an accessible

route of travel.” Norbreck provides evidence that the restaurant

does not violate these provisions because: (1) it has no

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inaccessible entrances; and (2) only one route leads to the

restaurant. (Blackseth Decl. ¶ 4; Price Decl. ¶ 6; Card Dep. at

23:7-18.) 

Wilson provides no evidence showing that the restaurant

violates either of these provisions. Because Wilson has failed

to raise a triable issue of fact, Norbreck’s motion for summary

judgment on this claim is GRANTED. 

2. California Business and Professions Code Section 17200

Wilson seeks injunctive relief under Cal. Bus. & Prof. Code

§ 17200 “to end [Norbreck’s] unlawful acts (i.e. remove all

barriers identified in Exhibit A) on behalf of his own interests

and those interests of the disabled public”. (Compl. ¶ 86.) 

Norbreck argues that Wilson lacks standing to pursue this claim

on behalf of others. Norbreck seeks summary judgment “to the

extent plaintiff brings a representative action.” (Defs.’ Mot.

at 10) (emphasis in original). 

The jurisdiction of federal courts is limited to cases and

controversies in which the plaintiff “has been injured by the

defendant’s challenged conduct.” Lee v. Am. Nat’l Ins. Co., 260

F.3d 997, 1001-02 (9th Cir. 2001). Wilson does not allege that

Norbreck’s discrimination against other disabled individuals has

caused him harm. Prudential limitations on standing prevent a

plaintiff from bringing a representative action except in certain

well-defined cases such as class actions under Rule 23 and parens

patriae actions instituted by the States. See Warth v. Seldin,

422 U.S. 490, 499 (1975) (discussing prudential limitations on

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standing and holding that a plaintiff “cannot rest his claim to

relief on the legal rights or interests of third parties”); Hong

Kong Supermarket v. Kizer, 830 F.2d 1078, 1081 (9th Cir. 1987)

(same); McMichael v. Napa County, 709 F.2d 1268, 1269-70 (9th

Cir. 1983) (outlining constitutional and prudential limitations

on standing). Because actions under § 17200 are not an exception

to this rule, Wilson lacks standing to bring a representative

claim under that section. Norbreck’s motion for summary judgment

on this issue is GRANTED.

3. Punitive Damages

Norbreck moves for summary judgment on Wilson’s punitive

damages claim. Wilson seeks punitive damages under Cal. Civ.

Code § 3294(a). (Compl. at 16.) That section provides: 

In an action for the breach of an obligation not

arising from contract, where it is proven by clear and

convincing evidence that the defendant has been guilty

of oppression, fraud, or malice, the plaintiff, in

addition to the actual damages, may recover damages for

the sake of example and by way of punishing the

defendant.

California Civil Code §§ 52(a) and 54.3 limit punitive

damages to three times the amount of actual damages. See Loskot

v. Lulu’s Rest., CIV S-00-1497 WBS PAN (E.D. Cal. Nov. 15, 2000)

(finding a request for punitive damages under Cal. Civ. Code §

3294 to be improper as applied to violations of the Unruh Act and

the Disabled Persons Act). Therefore, Norbreck’s motion for

summary judgment on Wilson’s claim for punitive damages arising

out of violations of the Unruh Act and the Disabled Persons Act

is GRANTED. 

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Norbreck also moves for summary judgment on Wilson’s claim

for punitive damages arising from violations of the ADA, Cal.

Health & Safety Code §§ 19955 et seq., Cal. Bus. & Prof. Code §

17200, and Cal. Civ. Code § 1714. Norbreck argues that summary

judgment is appropriate because Wilson has not provided evidence

that Norbreck has “been guilty of oppression, fraud, or malice.” 

Wilson has provided evidence that Norbreck violated both the ADA

and CBC. However, he does not come forward with any evidence

showing that these violations were flagrant in the since that

there have been many previous complaints, other enforcement

actions, and the like. In the absence of such evidence, no

punitive damages award could be made. Accordingly, Norbreck’s

motion for summary judgment on the punitive damages claim for

violations of the ADA, Cal. Health & Safety Code §§ 19955 et

seq., Cal. Bus. & Prof. Code § 17200, and Cal. Civ. Code § 1714

is GRANTED.

C. Wilson’s Motion for Summary Judgment

Wilson moves for summary judgment on his ADA and Unruh Act

claims and Norbreck’s affirmative defenses. (Pl.’s Mot. at 12-

13.) 

1. Lack of Accessible Seating in the Bar

Wilson claims that the restaurant violates ADAAG 5.1 and CBC

§ 1104B.5.4 because there is no accessible seating with proper

knee clearance at the bar counter. (Pl.’s Mot. at 3.) ADAAG 5.1

requires 5% of fixed or built-in tables to be accessible to the

disabled. ADAAG 5.2 requires either a portion of a counter where

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food or drink is served to be accessible, or that there be

accessible tables in the same area. CBC § 1104B.5.4 requires bar

areas to “have one wheelchair seating space for each 20 seats,

with at least one minimum wheelchair seating space.” Norbreck

provides evidence through the depositions of its manager and its

expert that the bar area has accessible seating which meets these

requirements. (Defs.’ Opp’n at 20; Price Decl. ¶ 9.) Because

whether there is sufficient accessible seating in the bar area is

disputed. As a result, the court DENIES Wilson’s motion for

summary judgment.

2. Toilet Tissue Dispenser Location 

Wilson claims that the location of the toilet paper

dispenser violates ADAAG 4.16.6 and CBC § 1115B.9.3 because it is

36" from the back wall and “difficult for him to reach.” (Pl.’s

Mot. at 4.) ADAAG 4.16.6 requires toilet paper dispensers in

accessible stalls to be located “within reach.” CBC § 1115B.9.3

requires toilet paper dispensers to be “located on the wall

within 12" of the front edge of the toilet seat.” Norbreck

argues that Wilson has not presented evidence that the toilet

paper dispenser is not within 12" of the toilet or is out of

reach. (Defs.’ Opp’n at 17.) Wilson provides no evidence that

the placement of the toilet paper dispenser violates either state

or federal law. Therefore, summary judgment on this claim is

DENIED.

3. Location of P-Trap and Waste Baskets

Wilson claims that the P-trap and waste baskets violate

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ADAAG 4.19.2 and CBC § 1115B.2.1.2.1 because they encroach on the

clear floor space under the sink. (Pl.’s Mot. at 4, 7.) ADAAG

4.19.2 requires the restaurant to provide knee clearance under

the sink that is 27" high and 8" deep, and an additional toe

clearance under the sink that is 9" high and 6" deep. CBC §

1115B.2.1.2.1 requires knee clearance that is 30" wide by 17"

deep, but makes no reference to toe clearance. Norbreck provides

evidence that the P-trap is located 9" away from the back wall

and 13" above the floor. (Price Decl. ¶ 15.) Wilson provides no

evidence that disputes these measurements. (Pl’s Mot. at 7.) 

Therefore, the court DENIES Wilson’s motion for summary judgment

and GRANTS summary judgment to Norbreck on the claim that the Ptrap encroaches into the required toe clearance. 

Wilson provides no evidence other than an unlabeled

photograph to demonstrate how and to what extent the wastebaskets

encroach on the clear floor space under the sink. (Pl.’s Mot. at

7.) To carry his burden on summary judgment, Wilson must provide

evidence demonstrating that he is entitled to judgment as a

matter of law. An unlabeled photograph of the sink area, devoid

of any measurements, does not satisfy this burden. Therefore,

Wilson’s motion for summary judgment on this claim is DENIED. 

4. Unsecured Floor Mats

Wilson claims that the floor mats in the restaurant violate

ADAAG 4.5.3 and CBC § 1124B.3 because they are not securely

attached to the floor. (Pl.’s Mot. at 6.) ADAAG 4.5.3 and CBC §

1124B.3 require carpets to be “securely attached” to the floor. 

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Norbreck argues that: (1) the ADA and CBC do not apply to floor

mats; and (2) “the mats’ transition trim and weight make them

‘securely attached’ to the floor for purposes of the ADA and

CBC.” (Defs.’ Opp’n at 21; Price Decl. ¶ 13; Blackseth Decl. ¶

8.) 

The court finds that the floor mats are not “carpets” for

purposes of the ADA and CBC. See United States Access Board,

Frequently Asked Questions About ADAAG, http://www.accessboard.gov/adaag/about/FAQ.htm#gfs1 (declaring that “such mats are

‘furnishings’ not covered by the ADAAG”). Because the cited

provisions of the ADA and CBC do not apply to floor mats, the

court DENIES Wilson’s motion for summary judgment and GRANTS

summary judgment to Norbreck.

5. Uninsulated Hot Water Lines

Wilson alleges that the hot water lines under the sink

violate ADAAG 4.19.4 and CBC § 1115B.2.1.2.2 because they are not

insulated. (Pl.’s Mot. at 7.) ADAAG 4.19.4 requires hot water

lines under the sink to be insulated or otherwise configured to

protect against contact. CBC § 1115B.2.1.2.2 requires hot water

lines “accessible under lavatories” to be insulated. Norbreck

provides evidence that the hot water lines at the restaurant do

not require insulation because they are configured to prevent

contact and are not accessible under the sink. (Price Decl. ¶

16; Blackseth Decl. ¶ 9.) Wilson provides no evidence

demonstrating that the hot water lines are accessible. Because

only accessible hot water lines need be insulated, the court

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DENIES Wilson’s motion for summary judgment on this claim and

GRANTS summary judgment to Norbreck. 

6. Entrance Door Opening Pressure

Wilson claims that the entrance door violates ADAAG 4.13.11

and CBC § 1133B.2.5 because it requires more than five pounds of

force to open. (Pl.’s Mot. at 3.) ADAAG 4.13.11 and CBC §

1133B.2.5 require doors to open with the application of not more

than five pounds of force. Norbreck provides evidence that: (1)

the restaurant has a policy of frequently inspecting its doors to

ensure that they require less than five pounds of force to

operate; and (2) measurements of the entrance door taken on

several occasions “at or near the dates of Wilson’s visits” show

that it required less than five pounds of force to open. (Opp’n

at 20; Price Decl. ¶ 12.) Whether the door was compliant at the

time of Wilson’s visit is in dispute. Wilson’s motion for

summary judgment is DENIED on this claim.

7. Inaccessible Raised Booths in Cocktail Lounge

Wilson claims that the restaurant violates ADAAG 5.4 and CBC

§ 1118B.4 because the booths in the cocktail lounge sit on an

inaccessible raised platform. (Pl.’s Mot. at 4, 6.) ADAAG 5.4

provides that “all dining areas, including raised or sunken

dining areas . . . shall be accessible.” CBC § 1118B.4 requires

clear floor space for wheelchairs. As the party with the burden

of proof at trial, Wilson must produce evidence of a violation to

succeed on a motion for summary judgment. Wilson provides no

evidence that the raised booths encroach on the clear floor space

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for wheelchairs. Therefore, the court DENIES Wilson’s motion for

summary judgment on the claim that the booths violate CBC §

1118B.4. 

Wilson also fails to provide evidence that the booths

constitute a “dining area” such that ADAAG 5.4 applies to them. 

The correct reading of ADAAG 5.4 is that the cocktail lounge as a

whole is a dining area. Therefore, the booths comprise only a

part of the seating in those areas. Because Wilson provides no

evidence that the cocktail lounge itself is inaccessible, there

is no violation of ADAAG 5.4. Wilson’s motion for summary

judgment on this claim is DENIED. 

8. Fixed Tables Without Appropriate Knee Clearance

Wilson claims that the restaurant’s fixed tables violate

ADAAG 4.32.3 and CBC § 1122B.3 because they “provide a depth with

less than 19 inches of knee clearance.” (Pl.’s Mot. at 6.) 

ADAAG 4.32.3 and CBC § 1122B.3 require that accessible seating at

fixed tables provide at least 19" of knee clearance. Norbreck

responds that the restaurant does have fixed tables with 19" of

knee clearance. (Defs.’ Opp’n at 18; Price Decl. ¶¶ 7,9.) 

ADAAG 5.1 only requires 5% of the fixed tables at a

restaurant to be accessible. Therefore, a restaurant can comply

with the law even if 95% of its fixed tables violate ADAAG 4.32.3

and CBC § 1122B.3. Norbreck’s evidence that it has enough fixed

tables with 19" of knee clearance to meet the requirements of

ADAAG 5.1 raises an issue of material fact. Therefore, Wilson’s

motion for summary judgment is DENIED on this claim.

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9. Inappropriately Spaced Dining Booths

Wilson claims that the booths in the bar and dining areas

violate ADAAG 5.4 and CBC § 1118B.4 because they are not 30"

apart. (Pl.’s Mot. at 6.) Norbreck replies that the restaurant

complies with ADAAG 5.4 and CBC § 1118B.4 and that at least 5% of

the seating in the bar and dining areas is accessible, as

required by ADAAG 5.1 and CBC § 1104B.5.4. (Defs.’ Opp’n at 17.) 

ADAAG 5.4 requires all dining areas to be accessible. CBC §

1118B.4 requires a minimum of 30" by 48" of clear floor space for

wheelchairs. Neither section mentions booth spacing or minimum

distances between booth seats. The court finds that neither

ADAAG 5.4 nor CBC § 1118B.4 requires 30" between non-accessible

booths. Therefore, the court DENIES Wilson’s motion for summary

judgment on this claim and GRANTS summary judgment on this claim

to Norbreck. 

10. Lowered Bar Counter Without Knee Clearance 

Wilson claims that the lowered portion of the bar counter

violates ADAAG 5.2 and 4.32.3 and CBC §§ 1104B.5(4) and 1122B.3

because it does not afford the appropriate knee clearance. 

(Pl.’s Mot. at 6.) ADAAG 5.2 requires the restaurant to provide

a lowered portion of the bar counter or to provide accessible

seating in the bar area. ADAAG 4.32.3 requires the lowered

portion of the bar to provide a knee space that is at least 27"

high, 30" wide and 19" deep. CBC § 1104B.5(4) requires the

restaurant to provide one accessible seating space for each 20

seats. CBC § 1122B.3 requires accessible seating at counters to

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provide a knee space that is at least 27" high, 30" wide and 19"

deep. 

Norbreck provides evidence that the restaurant has enough

accessible seating in the bar area to satisfy federal and state

law. (Defs.’ Opp’n at 20.) As a result, Norbreck contends the

lowered section of the bar need not be accessible. (Id.) The

parties dispute whether the bar area has enough accessible

seating to satisfy ADAAG 5.2 and CBC § 1104. Therefore, summary

judgment is DENIED on this claim.

11. Norbreck’s Affirmative Defenses

Norbreck pled the following fourteen affirmative defenses in

its answer: (1) failure to state a claim; (2) unclean hands; (3)

laches; (4) waiver; (5) estoppel; (6) statute of limitations; 

(7) failure to mitigate; (8) others at fault; (9) no punitive

damages warranted; (10) Fifth and Fourteenth Amendments; (11)

lack of standing; (12) mootness; (13) not readily achievable;

and (14) exemptions. (Ans. at 12-15.) Wilson moves for summary

judgment on all of Norbreck’s affirmative defenses except: (1)

failure to state a claim; (2) lack of standing; and (3)

mootness. (Pl.’s Mot. at 11.) Wilson claims that these three

theories are not “true affirmative defenses.” (Id.) 

Wilson points out that Norbreck has provided no evidence

to support any of its affirmative defenses. (Pl.’s Mot. at

12.) In its opposition, Norbreck withdrew the following

affirmative defenses: (1) laches; (2) waiver; (3) statute of

limitations; (4) Fifth and Fourteenth Amendments; and (5) not

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readily achievable. (Defs.’ Opp’n at 26.) Norbreck provides

no evidence supporting its affirmative defense of failure to

mitigate. Therefore, Wilson’s motion for summary judgment is

GRANTED as to that claim. 

In its Supplemental Answers to Interrogatories, Set One,

Norbreck provides evidence to support the following defenses:

(1) unclean hands; (2) estoppel; (3) others at fault; and (4)

exemptions. (Defs.’ Supp. Ans. to Interr. at 2-3.) 

Consequently, the burden shifts back to Wilson to negate an

element of each of these defenses. Adickes, 398 U.S. at 158-

60. Because Wilson presents no evidence regarding these five

defenses, the motion is DENIED as to each of them. 

D. Norbreck’s Motion for an Order Specifying Material Facts

Without Substantial Controversy

Norbreck moves for an order specifying material facts

without substantial controversy. If summary judgment “is not

rendered upon the whole case . . . and a trial is necessary,

the court . . . shall if practicable ascertain what material

facts exist without substantial controversy . . . [and] make an

order specifying [them], including the extent to which the

amount of damages or other relief is not in controversy.” 

Fed.R.Civ.P. 56(d).

The following facts are without substantial controversy:

(1) Wilson is disabled; (2) Wilson often, but not always, uses

a walking cane or wheelchair when traveling in public; (3)

Wilson visited the restaurant before filing the complaint; (4)

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the raised booths in the cocktail lounge and dining areas are

not accessible for wheelchair users; (5) the restaurant has

some fixed tables that provide a depth with less than 19" of

knee clearance; (6) some dining booths in the restaurant do not

provide 30" of space between booths; (7) Defendant Norbreck

owns the restaurant; (8) Norbreck completed construction of the

building on September 16, 2002; and (9) Norbreck received

certification to occupy the building on April 3, 2003.

III.

For the reasons set forth above, Wilson’s motion for

summary judgment is GRANTED on the affirmative defense of

failure to mitigate. Wilson’s motion is DENIED on all other

claims. Norbreck’s summary judgment motion is GRANTED on the

following claims: (1) lack of directional signage; (2) the

representative claim under § 17200; and (3) the claims for

punitive damages under the Unruh Act and Disabled Persons Act. 

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In addition, the court GRANTS summary judgment to Norbreck on

the following claims: (1) the P-trap encroaches into the toe

clearance under the sink; (2) the unsecured floor mats violate

ADAAG 4.5.3 and CBC § 1124B.3; (3) the uninsulated hot water

lines violate ADAAG 4.19.4 and CBC § 1115B.2.1.2.2; and (4) the

claim that the booth spacing violates ADAAG 5.4 and CBC §

1118B.4.

IT IS SO ORDERED.

Dated: 12/14/2005

DAVID F. LEVI

United States District Judge

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